Lawyer: 'False' to Call Religious Freedom Laws Discriminatory

Two lawyers appearing on Newsmax TV on Wednesday clashed over whether America's suddenly explosive religious freedom laws can be used to justify discrimination based on sexual orientation.

One litigator specializing in religious liberty cases told "MidPoint" host Ed Berliner that the answer is no — that neither the federal statute in question, passed in 1993, nor any of the 20 comparable state laws has ever been successfully deployed in court in defense of such discrimination.

To claim that the purpose of these religious freedom restoration acts (RFRAs) is to legitimize bias against LGBT people is "just false," said Eric Baxter, senior counsel with the Becket Fund for Religious Liberty, which has brought RFRA cases on behalf of people of different faiths.

Another lawyer appearing on "MidPoint" disagreed, saying the national uproar over a RFRA law in Indiana and a similar bill in Arkansas is justified.

"The law, as written in both Indiana and Arkansas, can be used — and could be used successfully — to beat back anti-discrimination laws," said Michael C. Barnes, a Washington, D.C., lawyer who previously served in the White House Office of National Drug Control Policy.

Barnes said it's been tried elsewhere: in New Mexico, where a wedding photographer sought to use that state's RFRA, passed in 2000, to justify turning down a same-sex couple.

The New Mexico challenge failed, but Barnes said a similar outcome is not guaranteed "in places like Arkansas, where we know that typically they are much more conservative and willing to discriminate."

Arkansas Gov. Asa Hutchinson said on Wednesday, however, that he would not sign a religious freedom bill passed this week by the state legislature until it is rewritten to forbid discrimination. Critics of the Arkansas bill include the state's largest employer, Wal-Mart.

Baxter, of the Becket Fund, said RFRA phobia arises from a handful of lawsuits involving business owners such as a baker or photographer who refuses work from a gay couple because of a religious objection to same-sex marriage.

Those parties "have asked not to participate in religious ceremonies that violate their own beliefs," said Baxter, offering the comparison that "a gay musician shouldn't be forced to perform at a rally for traditional marriage."

Baxter said RFRAs like Indiana's require only that "where there's a conflict between the government and someone's religious beliefs, the government has to show a compelling reason why it should be able to trample someone's religious rights."

"Sometimes the government wins those cases and sometimes it loses," he said.

"Let me give you a real example of where RFRA has protected people's religious rights," said Baxter. "If you're a kindergarten student in a public school who is being told you have to cut your hair against your religious beliefs. If you're a Jewish prisoner who wants a kosher meal. If you're a nun who's devoted her life to caring for the dying poor and you don't want to use medical procedures that violate your religious beliefs.

"These are the real scenarios where RFRA has protected minority rights of religious belief," he said. "It's never been used to allow plain discrimination, and the claims that it was intended to do that, or that it would do that, are just false."

But there are game-changing differences, according to Barnes, in the Arkansas bill and the backlash-inducing Indiana law signed last week by Republican Gov. Mike Pence — who is retreating under a hail of criticism and threats of business boycotts.

The Indiana and Arkansas measures, said Barnes, are explicitly written to expand the reach of religious-conscience objections by allowing for RFRA defenses in cases between private parties — and not just for somebody asking to be exempt from a particular statute.

"If you can say that you don't believe that you should be acting in a commercial setting in a way that's inconsistent with your religious views, then you can use these laws to justify your inaction," he said.